Bombay High Court
Royal Carrier And Courier Pvt. Ltd vs The State Of Maharashtra And ... on 11 March, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 4098 OF 2014
Royal Carrier & Courier Pvt. Ltd.
A Private Ltd. Company registered
under the companies Act, through
its M.D.Ishwarlal s/o Laxmandas Sharma
aged 71 years, occ. Transport business
r/o H.No. 2, Tarani colony Near Pooja Garden
A.B. Road, Dewas (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mrs. A. V. Gondhalekar, AGP for the State.
WITH
WRIT PETITION NO. 5835 OF 2013
Amarjit Singh Chhabra
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s/o Guruvachan Singh Chhabra
Aged 48 years, occ. Transport Business
R/o 229, Sachidanand Nagar
Annapurna Road, Indore (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. A. S. Deshpande, advocate for petitioner.
Mr. B.V. Virdhe, AGP for the State.
WITH
WRIT PETITION NO. 2156 OF 2014
Sanjay s/o Vinayakrao Lonkar
Age 45 years, Occ. Transport Business
R/o 25, Dayanand Marg
Tq. & Dist. Dhar (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
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(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4.
The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. L.V. Sangeet, advocate for petitioner.
Mrs. A.V. Gondhalekar, AGP for the State.
WITH
WRIT PETITION NO. 2146 OF 2014
Sarita w/o Vinayakrao Lonkar
Age 65 years, Occ. Transport Business
R/o 165, C/1-D, Sector 5
C.H. No. 71, Indore
Tq. & Dist. Indore (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
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3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. S.S. Dixit, advocate for petitioner.
Mr. B.V. Virdhe, AGP for the State.
ig WITH
WRIT PETITION NO. 2147 OF 2014
Kalicharan s/o Rameshchandra Sonwania
Age 40 years, Occ. Transport Business
r/o 11/1, Pratap Marg,
Dhar
Tq. & Dist. Indore (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
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of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. L.V. Sangeet, advocate for petitioner.
Mrs. A.V. Gondhalekar, AGP for the State.
WITH
WRIT PETITION NO. 2121 OF 2014
Jayashree w/o Ajay Lonkar
Age 35 years, Occ. Transport Business
r/o 25, Dayanand Marg
Dhar
Tq. & Dist. Dhar (M.P.)
VERSUS
ig .. PETITIONER
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. L.V. Sangeet, advocate for petitioner.
Mr. B.V. Virdhe, AGP for the State.
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WITH
WRIT PETITION NO. 2019 OF 2014
Smt. Manjubai w/o Narendrasingh Bundela
aged 40 years, occ. Transport Business
r/o House No. 53, Ganpati marg, Navgaon
Shar, Tah. & Dist. Dhar (M.P.)
Through GPA Shri Narendrsingh Mohansinghji Bundela
age 45 years, occ. Business
r/o House No. 53, Ganpati Marg,
Navgaon, Dhar
Tah. & Dist. Dhar (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department
(Transport), Mantralay,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan,
Government Colony,
Bandra (East)
Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport,
Mantralaya,
Bhopal
5. The State Transport Authority of
Madhya Pradesh,
Gwalior,
through its Secretary .. RESPONDENTS
Mr. Ajay Deshpande, advocate for petitioner.
Mrs. A. V. Gondhalekar, AGP for the State.
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WITH
WRIT PETITION NO. 2122 OF 2014
Shiv Patel s/o Babulal Patel
age 35 years, occ. Transport Business
r/o 22, Dayanand Marg,
Dhar
Tq. & Dist. Dhar (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2.
The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. L.V. Sangeet, advocate for petitioner.
Mrs. A.V. Gondhalekar, AGP for the State.
WITH
WRIT PETITION NO. 2024 OF 2014
Ravindra s/o Munnalal Yadav
Aged 25 years, occ. Transport Business
r/o House No. 142, LIG Colony,
Dhar, Tq. & Dist. Dhar (M.P.)
Through GPA Shri Narendrasingh Mohansinghji Bundela
age 45 years, occ. Business
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r/o House No. 53, Ganpati Marg, Navgaon
Dhar, Tq. & Dist. Dhar (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. A.S. Deshapande, AGP for the State.
Mr. B.V. Virdhe, AGP for the State.
WITH
WRIT PETITION NO. 2157 OF 2014
Vijay s/o Vinayakrao Lonkar
Age 40 years, occ. Transport Business
R/o 25, Dayanand Marg,
Dhar
Tq.& Dist. Dhar (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
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2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. L.V. Sangeet, advocate for petitioner.
Mrs. A.V. Gondhalekar, AGP for the State.
WITH
WRIT PETITION NO. 4099 OF 2014
Anjali w/o Shivkumar Sharma
Aged 48 years, occ. Transport Business
R/o H.No. 16, Alakhdham,
Ujjan (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
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4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mr. B.V. Virdhe, AGP for the State.
WITH
WRIT PETITION NO. 4021 OF 2014
Mahendrasingh s/o Onkarji Chauhan
Aged 50 years, occ. Transport Business
R/o House No. 8/9,
Soyabin Anusandhan Kendra
Khandwa road, Bhawarkuwa,
Indore (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
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Mr. A.S. Deshpande, advocate for petitioner.
Mrs. A.V. Gondhalekar, AGP for the State.
WITH
WRIT PETITION NO. 4102 OF 2014
Anjali w/o Shivkumar Sharma
aged 48 years, occ. Transport Business
r/o H. No. 16, Alakhdham,
Ujjan (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
(Transport), Mantralaya,
Mumbai 400 032.
through its Secretary to Home Department,
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mr. B.V. Virdhe, AGP for the State.
WITH
WRIT PETITION NO. 4101 OF 2014
Hemant Premchand Jain
aged 42 years, occ. Transport Business
r/o H.No. 66, Shankar Nagar,
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Ujjan (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mrs. A.V. Gondhalekar, AGP for the State.
WITH
WRIT PETITION NO. 4100 OF 2014
Pallavi w/o Dharmendra Jain
aged 48 years, occ. Transport Business
r/o 229, Sachidanand Nagar
Annapurna Road, Indore (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
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2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5.
The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mr. B.V. Virdhe, AGP for the State.
WITH
WRIT PETITION NO. 6845 OF 2015
Malti w/o Arvind Jain
aged 50 years, occ. Transport Business
r/o 348, Mohammad Pura,
Burahanpur (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
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Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mrs. A.V. Gondhalekar, AGP for the State.
ig WITH
WRIT PETITION NO. 6846 OF 2015
Rajesh s/o Javaharlal Shivhare
Aged 54 years, occ. Transport Business
r/o A-127, Indira Colony,
Burahanpur (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
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Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mr. B.V. Virdhe, AGP for the State.
WITH
WRIT PETITION NO. 6847 OF 2015
Virendra s/o Ramanand Tiwari
aged 30 years, occ. Transport Business
r/o 10/5, Swami Vivekanand Ward
Shahpur,
Tq. & Dist. Burahanpur (M.P.) .. PETITIONER
VERSUS
1.
The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mrs. A.V. Gondhalekar, AGP for the State.
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WITH
WRIT PETITION NO. 3495 OF 2015
Lokesh Shukla s/o Ranjjan Prasad Shukla
aged 47 years, occ. Transport Business
r/o Pansemal, Dist. Badwani (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
3rd and 4th Floor,
Administrative Building,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mr. B.V. Virdhe, AGP for the State.
WITH
WRIT PETITION NO. 2222 OF 2015
Shailendrasingh s/o Madhavsingh
Raghuvanshi
aged 40 years,
occ. Transport Business
r/o Vallabh nagar, Khargone
Dist. Khargone (M.P.) .. PETITIONER
VERSUS
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1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
4.
Mumbai.
The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mrs. A.V. Gondhalekar, AGP for the State.
WITH
WRIT PETITION NO. 3496 OF 2015
Lokesh Shukla s/o Ranjjan Prasad Shukla
Aged 47 years, occ. Transport Business
r/o Pansemal, Dist. Badwani (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
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Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mr. B.V. Virdhe, AGP for the State.
WITH
WRIT PETITION NO. 3497 OF 2015
Subhash s/o Sitaram Bhadane
aged 53 years, occ. Transport Business
r/o 66, Gaoshinde Nagar
Khargone
Dist. Khargone (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
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5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mrs. A.V. Gondhalekar, AGP for the State.
WITH
WRIT PETITION NO. 3498 OF 2015
Mohanlal s/o Kashiram Sanwariya
aged 46 years, occ. Transport Business
r/o 47, Amit Nagar,Badwani
Dist. Badwani (M.P.) ig .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mr. B.V. Virdhe, AGP for the State.
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WITH
WRIT PETITION NO. 1517 OF 2015
Pradeep Sharma s/o Krishnamurari Sharma
aged 52 years, occ. Transport Business
r/o H.No. 58/1, Shantipura
Dewas (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mrs. A.V. Gondhalekar, AGP for the State.
WITH
WRIT PETITION NO. 5288 OF 2015
Mohd. Nomar Khan s/o Ateeq Khan
aged 40 years, occ. Transport Business
r/o H.No. 3, Sutal Bakhal Devas (M.P.)
Through his G.P.A. Shaikh Mohd. Anees
s/o Sk. Mohd. Zaheer
age 40 years, occ. Business
r/o M.H. No. 08, Putlighar Colony
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20
Shahjahanbad Bhopal (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mr.B.V. Virdhe, AGP for the State.s
WITH
WRIT PETITION NO. 1520 OF 2015
Smt. Shashi w/o Ashok Arora
age 50 years, occ. Business
r/o 18, Vinay nagar Sector 2
Gwalior (M.P.)
through her power of attorney holder
Pradeep Sharma s/o Krishnamurari Sharma
aged 52 years, occ. Transport business
r/o H.No. 58/1, Shantipura
Dewas (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
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21
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mrs. A.V. Gondhalekar, AGP for the State.
WITH
WRIT PETITION NO. 2223 OF 2015
Shailendrasingh s/o Madhavsingh Raghuvanshi
aged 40 years, occ. Transport Business
r/o Vallabh nagar, Khargone
dist. Khargone (M.P.) .. PETITIONER
VERSUS
1. The State of Maharashtra
through its Secretary to Home Department,
(Transport), Mantralaya,
Mumbai 400 032.
2. The Transport Commissioner,
Maharashtra State,
Administrative Building,
3rd and 4th Floor,
Dr. Ambedkar Udyan, Government Colony,
Bandra (East), Mumbai 400 051.
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22
3. The Secretary,
State Transport Authority,
Maharashtra State,
Mumbai.
4. The State of Madhya Pradesh
through the Ministry of Transport
Mantralaya, Bhopal.
5. The State Transport Authority
of Madhya Pradesh,
Gwalior,
Through its Secretary .. RESPONDENTS
Mr. P.F. Patni, advocate for petitioner.
Mr. B.V. Virdhe, AGP for the State.
ig =====
CORAM : R.M. BORDE &
A.I.S. CHEEMA, JJ.
RESERVED ON : 24th FEBRUARY, 2016.
PRONOUNED ON : 11th MARCH, 2016.
ORAL JUDGMENT: ( PER R. M. BORDE, J. )
1. Heard.
2. Rule. Rule made returnable forthwith. With the consent of the
parties, petitions are taken up for final disposal at admission stage.
3. Petitioners are transporters operating passenger vehicles on the
routes prescribed under the Reciprocal Agreement entered into between the
State of Maharashtra and the State of Madhya Pradesh. The Reciprocal
Transport Agreement has been entered into between the two states on 1 st
March, 2007, primarily for prescribing the agreed routes in regard to
operation of the stage carriage services. The agreement also prescribes tax
on passengers leviable under the Bombay Motor Vehicles (Taxation of
Passenger) Act, 1958, (hereinafter referred to as 'Act of 1958') which will be
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on the basis of 70% load factor of seating capacity of the passenger vehicle.
According to petitioners, it is not permissible for the State to levy and
demand passenger tax at the rate of 70% of load factor of seating capacity of
the passenger transport vehicle since imposition of such tax is contrary to
section 3 of the Act of 1958. Petitioners as such seek declaration that the
respondents states shall have no authority to levy and demand passenger
tax at the rate specified under the Reciprocal agreement i.e. on the basis of
load factor of seating capacity of passenger vehicle and, hold such levy of
demand contrary to section 3 of the Act of 1958 and ultra virus to Article
256 of the Constitution of India.
4. The State of Maharashtra has entered into Reciprocal Transport
Agreement with the State of Madhya Pradesh and the agreement came into
force with effect from 1st March, 2007. The agreement is in regard to the
operation of the stage carriage service more fully specified in the agreement
on inter-State routes between two states. The agreement was published as
required under section 88(5) of the Motor Vehicles Act, 1988, and, on
consideration of representations from the persons who have right to make
representation, the same has been finalised. Clause 1 of the agreement
provides for taxation which reads thus :
1. Taxation - (a) There shall be single point
Motor Vehicle Tax in the reciprocating State in
respect of stage carriages covered by substantive
permits or temporary permits issued during the
pendency of renewals of substantive permits
under Section 87(1)(d) of the Motor Vehicles Act,
1988, within the agreed route and countersigned
by other State. There shall be tax on passenger
leviable under Bombay Motor Vehicle (taxation of
passengers) Act, 1958, which will be on the basis
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of 70% load factor of seating capacity of the
passenger vehicle.
(b) Goods carriages plying on substantive
permits or temporary permits issued during the
pendency of renewal of substantive permits under
Section 87(1)(d) of the Motor Vehicles Act, 1988
within the agreed quota and countersigned by
other State, shall be exempted on single point tax
basis in other State as under :-
(i) If the goods carriage belongs to the State of
Madhya Pradesh, Motor Vehicles Tax of
Maharashtra State shall be liable to pay for a
period of one year in advance and the
countersignature shall be valid for that period
only:
(ii) If the goods carriage belongs to the State of
Maharashtra Motor Vehicle Tax exemption is fixed
from time to time by the Government of Madhya
Pradesh shall be granted in Madhya Pradesh and
the balance (i.e. M.V. Tax minus concessional
exemption) amount of Motor Vehicle Tax shall be
payable for a period of one year in advance and
the countersignature shall be valid for that period
only. The aforesaid exemption shall hereinafter be
called "Reciprocal tax exemption".
(c) Explanation - For the purpose of this
agreement -
(1) the word "Single point Motor Vehicle Tax" in
respect of a stage carriages covered with a duly
countersigned permits means:-
(i) in the case of stage carriage of Madhya
Pradesh, liability of payment of Motor Vehicle Tax
in Home State but exemption from Motor Vehicle
Tax in the State of Maharashtra. However
passenger tax of Maharashtra shall be payable on
the basis of 70% load factor of seating capacity of
the passenger vehicle.
(ii) In the case of stage carriage of
Maharashtra the liability of payment of Motor
vehicle Tax (Road Tax) in Home State alongwith
the liability of payment of Motor Vehicle Tax (Road
Tax) in Home State alongwith the liability of
payment of Motor Vehicle Tax Madhya Pradesh at
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concessional rate applicable to the stage carriage
of other State plying under a reciprocal agreement
as provided in the Madhya Pradesh Motoryan
Karadhan Adiniyam, 1991.
(2) The words "Double Point Tax" Basis in
respect of a Motor Vehicle means the liability of
payment of all the taxes including Motor Vehicle
Tax /Toll in both States.
The mode of payment of tax is provided under clause 2 of the
agreement. The Reciprocal agreement is entered into between the State of
Maharashtra and the State of Madhya Pradesh as provided under section
88(5) of the Motor Vehicles Act, 1988. The relevant provisions are as quoted
below :
88. Validation of permits for use outside
region in which granted-
(5) Every proposal to enter into an agreement
between the States to fix the number of permits
which is proposed to be granted or countersigned
in respect of each route or area, shall be published
by each of the State Governments concerned in the
Official Gazette and in any one or more of the
newspapers in regional language circulating in the
area or route proposed to be covered by the
agreement together with a notice of the date before
which representations in connection therewith may
be submitted, and the date not being less than
thirty days from the date of publication in the
Official Gazette, on which, and the authority by
which, and the time and place at which the
proposal and any representation received in
connection therewith will be considered.
(6) Every agreement arrived at between the
State shall, insofar as it relates to the grant of
countersignature of permits, be published by each
of the State Governments concerned in the Official
Gazette and in any one or more of the newspapers
in the regional language circulating in the area or
route covered by the agreement and the State
Transport Authority of the State and the Regional
Transport Authority concerned shall give effect to
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it.
The Act of 1958 provides for levy of tax on passengers carried by
stage carriage in the State. Section 3 of the Act relates to levy of tax on
passengers carried by stage carriage which reads thus :
Section 3 : Levy of tax on passengers carried by
stage carriage
(1) There shall be levied and paid to the State
Government a tax on all 3[Passengers carried by
road in stage carriages] 4[at such rate to be fixed by
the State Government from time to time by order in
the Official Gazette as would yield an amount not
exceeding twenty per cent] of the inclusive amount
of fares payable to the operator of a stage carriage.
(2) After calculating the total amount of tax
payable under subsection (1) out of the total
amount received by an operator during each month
on account of inclusive fares in respect of the stage
carriage or stage carriages held by him the total
amount of tax shall wherever necessary be rounded
off to the nearest naya paisa, fractions of half a
naya paisa and over being counted as one and less
than held being disregarded.
Section 5 of the Act provides that tax shall be paid every month to
the Tax Officer which reads thus :
Section 5 : Tax to be paid every month [to Tax
Officer] :
The tax payable during any month in accordance
with the returns submitted under Section 4 shall be
paid to the Tax Officer by the operator on or before
such date or dates of the month immediately
succeeding as may be prescribed in the case of fleet
owners and other operators.
Provided that the tax payable by the operator, of a
stage carriage which is registered, or in respect of
which a permit is issued, by any Transport
Authority other than the Transport Authority in the
State of Maharashtra, plying such carriage as a
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contract carriage in the State of Maharashtra, shall
be paid by him to the nearest Tax Officer while
entering such contract carriage in the State of
Maharashtra and such operator shall also file with
the Tax Officer the return in respect of such tax in
the form prescribed for daily return; and if the
journey by such contract carriage terminates in the
State of Maharashtra and thereafter the same
contract carriage commences further or return
journey with passengers the tax payable in respect
thereof shall be paid to the Tax Officer of the
nearest area from where the journey so commences
Or if such journey commences on a public holiday
to any other Tax Officer, before such contract
carriage leaves the State: and such operator shall
also file with such Tax Officer the return as
aforesaid in respect of such tax
The procedure where no returns are submitted as well as fares
escaping assessment, penalty for non-payment of tax, recovery of tax,
restrictions on the use of stage carriages in certain cases and refund of
excess payment has been provided under sections 6 to 10A of the Act which
reads thus :
Section 06 : Procedure where no returns are
submitted, etc.
In the following cases, that is to say, -
(a) Where no returns have been submitted by
the operator in respect of any stage carriage for any
months or portion thereof, or
(b) Where the returns submitted by the operator
in respect of any stage carriage for any month or
portion thereof appear to the Tax Officer to be
incorrect or incomplete. 3[the Tax Officer shall, at
any time] after giving the operator a reasonable
opportunity, in case (a) of making his
representation, if any, and in case (b) of establishing
the correctness and completeness of the returns
submitted by him, determine the sum payable to the
State Government by the operator by way of tax
during such month or portion thereof;
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Provided that the sum so determined shall not
exceed the maximum tax which would have been
payable to the State Government if the stage
carriage had carried its full complement of
passengers during such month or portion thereof.
Section 07 : Fares escaping assessment :
If, for any reason, the whole or any portion of the tax
leviable under this Act for any month has escaped
assessment, the Tax Officer may, at any time
within, but not beyond one year from the expiry of
that month, assess the tax which has escaped
assessment after issuing a notice to the operator
and making such inquiry as the officer may consider
necessary,
Section 08 : Penalty for non-payment of tax :
Where the whole or any portion of the tax payable to
the State Government in respect of any stage
carriage for any month or portion thereof in
pursuance of Sections 5, 6 and 7 has not been paid
to it in time, the Tax Officer may, in his discretion,
levy in addition to the tax so payable, a penalty not
exceeding 25 per cent of the maximum tax which
would have been payable to the State Government if
the stage carriage had carried its full complement of
passengers during such month or portion thereof.
Section 09 : Recovery of Tax, etc.
(1) In the cases referred to in sections 6, 7 and 8
the Tax Officer shall serve the operator a notice of
demand for the sums payable to the State
Government and the sums specified in such notice
may be recovered from the operator as arrears of
land revenue.
(2) Where the sums specified in the notice of
demand are not paid within fifteen days from the
date on which the notice was served on the operator,
the stage carriage in respect of which the tax is due
and its accessories may be distrained and sold
under the appropriate law relating to recovery of
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arrears of land revenue, whether or not such vehicle
or accessories are in the possession or control of the
operator: Provided that no distraint shall be made in
pursuance of this subsection except at the instance
or with the consent of the State Government or such
officer as may be authorised by the State
Government in this behalf.
(3) Distraints under sub-section (2) may also be
made by such officers or class of officers as the
State Government may, by general or special order,
direct and the officer making any such distraint
shall forward the proceedings thereof together within
the distraint articles to the Collector for further
action under sub-section (2).
Section 10 : Restrictions on the use of stage
carriages in certain cases.
No stage carriage shall be used for the carriage of
passengers on any road in the State-
(a) in case any tax or penalty payable in respect
thereof remains unpaid for more than fifteen days
after the notice of demand referred to in Section 9
has been served on the operator, until such tax or
penalty is paid, or
(b) in case the returns required by section 4
have not been submitted, if daily returns are
required, for more than seven days, and if returns at
less frequent intervals have been prescribed, for
such number of times and during such period as
may be prescribed, until the returns are submitted;
Provided that the Tax Officer may, if the operator
proves to his satisfaction that the failure to submit
the returns referred to in clause (b) was not
deliberate, exempt the stage carriage from the
operation of that clause.
Section 10A : Refund of excess payment.
The Tax Officer shall refund to an operator in such
manner as may be prescribed the amount of tax and
penalty (if any) paid by such operator in excess of
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the amount due from him. The refund may be either
by cash payment or, at the option of the operator, by
deduction of such excess from the amount of tax
and penalty (if any) due in respect of any other
period:
Provided that, the Tax Officer shall first apply such
excess towards the recovery of any amount due in
respect of which a notice under subsection (1) of
section 9 has been served on the operator, and shall
then refund the balance (if any).
5. Petitioners contend that the provisions contained in the agreement
i.e. clause (1) prescribes levy of tax from passengers on the basis of 70% of
the load factor of seating capacity of the passenger vehicle is contrary to
section 3 of the Act of 1958. Section 3 of the Act provides that there shall
be levied and paid to the State Government a tax on all passengers carried
by road in stage carriages at such rate to be fixed by the State Government
from time to time by order in the Official Gazette as would yield an amount
not exceeding twenty per cent of the inclusive amount of fares payable to the
operator of a stage carriages. Thus, levy of tax has nexus with the
passengers carried by road in stage carriages and the amount of fare
payable to the operator of stage carriage. The amount of tax is liable to be
paid at the end of the month. In view of section 5 of the act there is a
provision in respect of presentation of returns on or before such date or
dates of the month immediately succeeding as may be prescribed in the
case of fleet owners and other operators. In respect of stage carriage which
is registered or in respect of which a permit is issued by any transport
authority other than transport authority in the State of Maharashtra, tax
shall be paid by him to the nearest Tax Officer while entering such contract
carriage in the State of Maharashtra and such operator is also required to
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file with the Tax Officer return in respect of such tax in the form prescribed
for daily returns; and if journey by such contract carriage terminates in the
State of Maharashtra and thereafter the same contract carriage commences
further or return journey with passengers the tax payable in respect thereof
shall be paid to the Tax Officer of the nearest area from where the journey
so commences or if such journey commences on a public holiday to any
other Tax Officer, before such contract carriage leaves the State and such
operator shall also file with such Tax Officer the return as aforesaid in
respect of such tax. It is the contention of petitioners that the procedure
provided under sections 3, 4 and 5 has been given go bye and the liability is
prescribed on the transport operator to pay lump sum amount in advance
on the basis of 70% of the passenger carrying capacity of the vehicle.
According to petitioners, imposition of lump sum tax shall have to be
construed as tax on the transporter and not on passenger. It is the
contention of petitioners that Article 256 of the Constitution of India
mandates that no tax shall be levied or collected except by authority of law.
The levy and collection of tax in lump sum in pursuance to reciprocal
agreement, according to petitioners, is in contravention of Article 256 of the
Constitution of India read with provisions of the Act of 1958. It is further
contended that entry 56 of List II i.e. State List of Seventh Schedule of the
Constitution of India authorises the State to levy tax on goods and
passengers carried by road or on inland waterways. It is permissible for the
State to levy tax on passengers carried by road however, it is not permissible
to levy tax on the transporter. Levy of tax on lump sum basis would bring
the element of compulsion requiring recovery of tax from the bus operators
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or the transporters under the garb of levy of tax on passengers without
having regard to the number of passengers actually travelling, would be in
effect a tax on transporter and not on passengers which would be
impermissible in terms of entry 56 of List II of the Seventh Schedule of the
Constitution of India. Reliance is placed on the judgment in the matter of
Gill Bus Service (Registered), Amritsar and others Vs. State of Punjab and
another reported in AIR 1993 Punjab and Haryana 281. In paragraph no.
11 of the judgment, it is observed thus :
If the stand as taken by the State
Government is accepted that after the amendment, a
transporter is obliged to pay passenger tax on lump
sum basis, it can straightway be concluded that
there is an element of compulsion for the transporter
to pay tax on lump sum basis and in our view this
compulsion has rendered the provisions relating to
the payment of tax on lump sum basis as invalid. In
terms of Entry 56, as noticed above, the State
Legislature has the power to levy and collect tax on
passengers carried by road. The Legislature is, thus,
competent to levy tax on passengers and nobody
else. It could, however, devise a machinery for the
recovery of said tax by requiring the bus operators or
its owners to collect tax and pay to the State
Government as it would otherwise be impossible for
the State Government to collect tax from each
passenger. It in the garb of levy of tax on
passengers could not tax the operators by requiring
them to pay tax on lump sum basis without having
regard to the number of passengers actually
travelled. Say, for example, if in a bus only 20
passengers have travelled, the operator would be
required to pay tax in respect of 20 passengers only
who actually travelled in the bus whereas if the
operator is required to pay tax on lump sum basis he
will have to pay for more passengers and for the
entire journey of the route on the basis of formula as
detailed in Rule 9 of the Rules, by taking the
occupancy of the passengers at 65% which may not
factually be there. In other words, it would be a tax
on the transporter and not on the passengers or the
goods. This is so discernible from the judgment of
the Supreme Court in Rai Ramkrishna (AIR 1963 SC
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1667) (supra). It is, however, a matter of common
knowledge that the buses carrying passengers are
over-loaded and carry more passengers than are
permissible under the law and in any case are
carrying more passengers than the percentage of
occupancy taken for determination of payment of
passenger tax on lump sum basis. But it is only for
the transporter to decide for himself as to whether he
would like to pay tax on lump sum basis or on the
basis of affixation of passenger tax adhesive stamps
by keeping accounts. The two situations where the
operator may decide to pay tax on lump sum basis
and where he is compelled to make payment of tax
on lump sum basis in terms of the formula as
detailed in Rule 9 of the Rules, are entirely different.
In the first situation, there is an option with the
operator to pay tax in lump sum or otherwise
whereas in the latter, he is forced to pay tax on lump
sum basis irrespective of the actual collection of
passenger tax made by him. In a similar situation,
the Himachal Pradesh High Court Civil Writ Petition
No. 664 of 1991 (The Nurpur Pvt Bus Opertors Union
v. State) decided on October 1, 1992, has taken a
view that confining payment of tax under the Act to
the mode of payment by lump sum was invalid. We
are entirely in agreement with the reasoning given in
the said judgment.
Heavy reliance is placed by petitioners on the judgment delivered by
five Judges Bench of the Supreme Court in the matter of State of H.P. And
others etc. Vs. Nurpur Private Bus Operators Union and others etc. reported in
AIR 1999 Supreme Court 3880. The judgment delivered by Himachal
Pradesh High Court, quashing amendments made to the relevant provisions
of Himachal Pradesh Passengers and Goods Tax Act, 1955, providing for
mode of payment of tax by lump sum, was a matter of challenge before the
Supreme Court. Section 3 of the Himachal Pradesh Act provides for levy of
tax which reads thus :
"3 Levy of Tax - (1) There shall be levied,
charged and paid to the State Government a tax on
all fares and freights in respect of all passengers
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carried and goods transported by motor vehicles at
such rates not exceeding..... as the Government
may, by notification, direct."
( Emphasis supplied)
Section 4 which lays down method of collection of tax by the owner of
the motor vehicle and paid to the State Government under the prescribed
manner, which was a matter of challenge before the High Court, reads
thus :
"Provided further that in case of motor vehicles
(including the stage of contract carriages), other
than those specified in the first proviso, in which
the passengers are carried, the State Government
may assess the tax...... at lump sum in the manner
prescribed, taking into consideration the registered
capacity of the vehicle and the distance travelled or
to be travelled by such motor vehicles under a
permit issued to such vehicles.
( Emphasis supplied)
While dealing with the challenge, the Supreme Court has observed in
paragraphs 7 and 8 of the judgment thus :
"7. Learned counsel for the appellant-State
submitted that the said Section 4 and Rule had
been so amended having regard to surveys made
and data collected by the State Government and
with a view to prevent tax evasion. This may be so,
but there can be no generalisation of tax that can
be levied under Section 3. It can only be levied
with due regard to all fares in respect of all
passengers carried by the particular operator. No
hypothetical assumption can be made about how
many passengers an operator has carried. The
amendment of the said Section 4, by the inclusion
of the proviso quoted above, is beyond the scope of
the said Act. It is, therefore, unnecessary to
consider Rule 9, as amended, whose terms also, in
fact, leave the matter in no doubt.
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8. The State may now make assessment of
passenger tax on the basis that is provided for in
Section 3 of the Act.
6. Considering the ratio of the judgment of the Apex Court and
considering the provisions of the Himachal Pradesh Act which are identical
to the provisions of the Maharashtra Act, the principle laid down in the
judgment shall squarely apply to the instant matter. As has been provided,
the tax can only be levied with due regard to the fares in respect of all
passengers carried by a particular operator and no hypothetical assumption
can be made about how many passengers an operator has carried. The
assumption made for levy and collection of tax i.e. 70% of the load factor as
provided in the reciprocal agreement between the State of Maharashtra and
the State of Madhya Pradesh is in contravention of the provisions of section
3 of the Act of 1958. It shall have to be reiterated that it would be open for
the State to levy tax on the passengers only transported in the passenger
vehicle and not on the basis of assumption otherwise, it would be a tax
levied against the transporter which would be impermissible in view of
entry 56, List II of Seventh Schedule of the Constitution of India.
7. In the matter of "Akhil Gujarat Pravasi Vahan Sanchalak
Mahamandal, Ahmedabad and others Vs. State of Gujarat and others"
reported in AIR 2002 Gujarat 121, validity of section 3A of Bombay Motor
Vehicles Tax Rules, 1959, mandating payment of advance tax on passengers
for one month irrespective of the fact of non-use of the vehicle, was a matter
of challenge. While dealing with the matter, in paragraph no. 24 of the
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judgment, it is observed thus :
"24. Mere look at both the entries, makes it
clear that neither of the entries 56 or 57 authorises
the State to levy advance tax. The word used in
entry 56 "passengers carried" presupposes use of
bus on road, its capacity to carry passengers and
its roadworthy condition. There is difference
between 'passengers carried' and capable of
carrying passengers'. Carrying passengers depends
on the use of bus and its roadworthy condition and
availability of passengers while the capability of
carrying passengers depends upon the seating
capacity of the bus whether used or not used,
whether it is in roadworthy condition or not etc.
Thus, it is clear that demanding advance tax on
passengers for one month is beyond the legislative
Entry No. 56."
The Division Bench of the Gujarat High Court proceeded to set aside
the provisions of Rules 3A(1), 3A(2) and 5 of the Bombay Motor Vehicles
Rules holding the same as beyond legislative competence and therefore,
illegal, bad and without authority of law. Thus, it would be permissible to
levy tax on passengers and imposition of advance tax irrespective of the fact
whether the transport vehicle was operated or not would be a tax on the
transporter and not on passenger and as such beyond the legislative entry
no. 56 of List II of Seventh Schedule of the Constitution of India. In the
instant matter also, the requirement of payment of advance tax at the rate
of 70% of the load factor shall have to be construed as contrary to the
legislative entry 56 contained in List II of Seventh Schedule of the
Constitution of India and, section 3 of the Act of 1958.
8. Learned AGP for the State contends that the Act of 1958 is held to be
intra vires and as such, the action of the State Government which is in the
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interest of the revenue cannot be impeached. The Division Bench of this
Court in the matter of Akhil Bharatiya Grahak Panchayat (Bombay Branch)
and others Vs. State of Maharashtra and others reported in AIR 1985
Bombay 14, while upholding the validity of the Act of 1958, has observed
that the Act is intra vires the Legislation since the tax is levied on the
passengers and not on income of the operator. In the instant matter,
contrary to the intention of the Legislation, it has to be construed that the
directions to pay tax on the basis of 70% of the load factor is in effect tax on
the transporter and not tax on passenger. It would be advantageous to refer
to the observations of the Supreme Court in the matter of M/s Tata
Engineering and Locomotive co. Ltd. Vs. The Sales Tax Officer and Regional
Transport Officer, Poona and another reported in (1979) 1 Supreme Court
Cases 208. In paragraphs 7 and 8 of the judgment, the Apex Court has
observed thus :
"7. Rule 2(i) of the Bombay Motor Vehicles
Rules, 1940 framed under the Bombay motor
Vehicles Act, 1939 defines 'passenger' thus -
'passenger' for the purposes of the rules in
Chapter IV means any person travelling in a public
service vehicle other than the driver or the
conductor or an employee of the permit holder while
on duty.
8. a combined reading, therefore, of Rule 2(i)
and Section 2(7) of the Act clearly indicates that the
tax would be leviable only if the passengers are
carried on a public service vehicle. It is true that
the term 'public service vehicle' has not been
defined either by the Act or by the Rules, but that
however does not create any difficulty, because
having regard to the Preamble of the Act we are of
the opinion that the tax can be levied only on
passengers who are carried by a stage carriage
which is of the nature of a public service vehicle.
The word 'public' has got a well-known connotation
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and means a carriage to which any member of the
public can have free access on payment of the usual
charges. It cannot by any process of reasoning or
stretch of imagination be deemed to include
employees of a private company who are given
facilities not as members of the public but as
holding a special status, namely, the employees of
that company. Thus, qua public the employees form
a separate class and cannot be said to be public as
contemplated by Rule 2(i).
9. There cannot be a duel opinion in respect of the preposition that no
tax shall be levied and collected except authorised by law meaning thereby
unless there is Legislative sanction, tax cannot be levied and recovered. It
shall also have to be borne in mind that tax is to be levied and collected in
accordance with the provisions of law and not otherwise. In the instant
matter, the provisions of section 3 of the Act of 1958 have been given go bye
and different methodology is adopted under the terms of Reciprocal
agreement arrived at between the State of Maharashtra and the State of
Madhya Pradesh which methodology is obviously contrary to the provisions
of law as well as opposed to the entry 56 of List II of Seventh Schedule of the
Constitution of India. For the aforesaid preposition, reliance can be placed
on the judgment in the matter of Commissioner Income Tax, Udaipur,
Rajasthan Vs. Mcdowell and Company Limited reported in (2009)10
Supreme Court Cases 755. The Supreme Court has observed in
paragraph no. 21 of the judgment thus :
"21. "Tax", "duty", "cess" or "fee" constituting a
class denotes to various kinds of imposts by State in
its sovereign power of taxation to raise revenue for
the State. Within the expression of each specie
each expression denotes different kind of impost
depending on the purpose for which they are levied.
This power can be exercised in any of its
manifestation only under any law authorising levy
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and collection of tax as envisaged under Article 265
within uses only the expression that no "tax" shall
be levied and collected except authroised by law. It
in its elementary meaning conveys that to support a
tax legislative action is essential, it cannot be levied
and collected in the absence of any legislative
sanction by exercise of executive power of State
under Article 73 by the Union or Article 162 by the
State.
10. It is contended by the State in the affidavit that in order to give some
concession in tax and to avoid evasion of tax, clause 1(a) of the agreement
provides for advance payment of passenger tax on the basis of 70% load
factor of seating capacity of passenger vehicle. It is further contended that
the passenger tax is being levied and collected as per the provisions of
Taxation of Passengers Act. The admission on the part of the State
Government that advance tax on consideration of 70% load factor of the
seating capacity of the passenger vehicle is collected irrespective of the fact
that whether the vehicle carried such number of passengers or whether the
vehicle was on the road during the period for which the tax is levied, itself
indicates that the tax that is imposed under the methodology evolved in the
Reciprocal agreement is infact tax on the transporter and not on the
passengers who actually travelled in the vehicle on the prescribed route
during the relevant period.
11. For the reasons recorded above, writ petitions deserve to be allowed
and the same are accordingly allowed. Respondents have no authority in
law to levy and demand passenger tax at the rate of 70% of the load factor of
seating capacity of passenger transport vehicle since it is contrary to
provisions of the Act of 1958, as well as impermissible for the reasons set
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out above. Respondents - State authorities shall not demand passenger tax
on computation of 70% of load factor of the seating capacity of the
passenger transport vehicle and shall levy and collect tax strictly in
accordance with the provisions of Bombay Motor Vehicles (Taxation of
Passengers) Act, 1958.
12. Respective counsel for the petitioners, on instructions, state that in
terms of the directions issued by this Court during the pendency of these
petitions, petitioners continued to deposit 50% of the amount as claimed
from them and, the amount so paid shall be appropriated by the State
towards past liability in respect of demand of tax. Petitioners do not have
any specific objection for appropriation of the amount which they have
deposited during the pendency of the petitions towards tax and, in future,
levy and recovery of tax shall be in accordance with the Act of 1958. State
Government shall be entitled to the amount deposited / to be deposited in
view of interim orders which were passed during pendency of these petitions
and to take further appropriate decisions in respect of recovery of past
liability/difference of the petitioners as per rules relied on by the petitioners
themselves and referred above. Rule is accordingly made absolute. In the
facts and circumstances of the case, there shall be no order as to costs.
( A.I.S. CHEEMA ) ( R. M. BORDE )
JUDGE JUDGE
dyb
